Karnataka High Court
Kallesh vs State By Nonavinakere Police Station on 4 March, 2024
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CRL.A No. 1 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1 OF 2014
BETWEEN:
1. KALLESH
S/O KUMARASWAMY
30 YEARS.
2. SHANKARAMURTHY
S/O KUMARASWAMY
30 YEARS.
BOTH ARE RESIDENTS OF
JAYAPURA GATE, NONAVINAKERE HOBLI
TIPTUR TALUK
TUMKUR DISTRICT.
...APPELLANTS
(BY SRI B. RAVINDRA, ADVOCATE)
AND:
STATE BY
Digitally signed by
MOUNESHWARAPPA
NONAVINAKERE POLICE STATION
NAGARATHNA
Location: HIGH
REP. BY S.P.P.
COURT OF
KARNATAKA
HIGH COURT
BENGALURU-1.
...RESPONDENT
(BY SRI VINAY MAHADEVAIAH, H.C.G.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:10.12.2013
PASSED BY THE PRINCIPAL SESSIONS JUDGE (SPECIAL JUDGE),
TUMKUR IN SPL.C.NO.307/11 - CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 20(a)(i) OF N.D.P.S., ACT 1985 AND ETC.,
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CRL.A No. 1 of 2014
THIS CRIMINAL APPEAL IS COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants have filed this appeal under Section
374 (2) of the Code of Criminal Procedure, 1973 (for short
'Cr.P.C.) praying to set aside the judgment of conviction
and order on sentence dated 10.12.2013 passed by the
Principal Sessions Judge(Special Judge), Tumkur (for short
'Trial Court') in Special Case No.307/2011, wherein, the
Trial Court has convicted the appellants for the offences
under section 20(a)(i) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short 'NDPS Act')
and sentenced to undergo rigorous imprisonment for a
period of five years and to pay a fine of Rs.30,000/- and in
default to pay fine, to undergo simple imprisonment for a
period of one year.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court. The
appellants are 'accused' and respondent -State is the
'complainant'.
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3. The brief facts of the prosecution case are as
under:
On 08.08.2011, at about 9.00 p.m., PW-7
Dr. Boralingaiah, then Addl. Superintendent of Police,
Tiptur Sub Division, received a credible information that
Cannabis(ganja) plants have been grown illegally and
unauthorisedly in the land of PW-5-Kumaraswamy at
Jayapura gate in Nonavinakere Hobli, hence, PW-7
informed the same to the Police Sub-Inspector (PW-8)
Amareshgowda and asked him to make arrangement for
conducting raid. Immediately, he secured the staff,
videographer, Tahsildhar and two panchas and went to the
house of Kumaraswamy at Jayapura gate, and in front of
the said house, they noticed the accused Kallesh and
Shankar Murthy who were sons of one Kumaraswamy.
They verified the backyard of their house and noticed that
in the middle of marigold flowers, they had grown 85
cannabis(Ganja) plants systematically. Hence, all the
ganja plants were uprooted with the help of staff,
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weighed and came to know that they weighed 50 kg of
ganja. About half kg from it was separated and seized
separately for its further examination and rest of 49.5 kgs
of ganja plants were seized separately. PW-7 handed over
accused No.1 and 2 and seized articles to Police Sub
Inspector for further action. PW-7 also drew Ex-P1 seizure
panchanama at the spot. On the basis of the seizure
panchanama, PW-8 -PSI-Amareshgowda registered the
case in Cr.No.77/2011 against accused Nos.1 and 2 for the
offence punishable under section 20(a) (i) of NDPS act.
The Investigating Officer recorded the statement of the
witnesses, secured the documents and on conclusion of
the investigation, filed the charge sheet.
4. After receipt of charge sheet, the Trial Court
took cognizance of the offence under Section 190(b) of
Cr.P.C., The presence of accused Nos.1 and 2 were
secured and they were enlarged on bail during trial. The
Trial Court after hearing charge, framed charge against
the appellants for the offence under Section 20(a)(i) of
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NDPS Act and they pleaded not guilty and claimed to be
tried.
5. The prosecution in order to prove its case
examined in all eight witnesses as PWs.1 to 8, got marked
in all nine documents as Exs.P1 to P9 and five material
objects as MOs.1 to 5. At the conclusion of the trial,
statements of accused Nos.1 and 2 were recorded under
Section 313 Cr.P.C. by explaining the incriminating
materials available in the prosecution case and the case of
accused Nos.1 and 2 were of total denial.
6. After hearing the prosecution and the defence,
the trial court framed the following points for
consideration, which are as under:
1. Whether the prosecution has proved beyond
reasonable doubt that on 08.08.2011 at
about 11.15 p.m. the accused were found
having cultivated ganja (cannabis) plants in
the backyard of House No.C-66, situated at
Javapura gate, Nonavinakere Hobli, Tiptur
Taluk, within the limits of complainant police
station, the ganja plants weighing 50 Kgs.
and that the accused had cultivated them
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without having any valid licence or permit
and thereby accused have committed an
offence punishable Secs.20(a) (i) of the
Narcotic Drugs and Psychotropic Substances
Act, 1985?
2. What order?
7. On the basis of the oral and documentary
evidence, the Trial Court convicted the accused for the
offence under section 20(a) (i) of NDPS Act and sentenced
them to undergo rigorous imprisonment for a period of five
years and to pay a fine of Rs.30,000/- each and in case of
default of payment of fine, they shall undergo additional
simple imprisonment for a period of one year under
Section 20(a)(i) of NDPS Act. Aggrieved by the judgment
of conviction and order on sentence, the appellants have
filed this appeal.
8. The learned counsel for the accused contended
that the judgment of conviction and order on sentence
passed by the Trial Court is manifestly illegal, arbitrary
and against facts and evidence on record. There is no iota
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of evidence to connect the accused in the crime. In the
instant case, the independent witnesses viz., PWs.1, 2 and
PW-3 photographer and PW-5-father of accused Nos.1 and
2 have turned hostile to the case of the prosecution and in
the absence of independent witnesses, merely on the basis
of the oral evidence of PW.4-H.S. Shivashankaraiah, PW.6-
A.B Vijayakumar Tahsildhar, PW.7-Dr. Boralingaiah Addl.
SP and PW.8-Amareshgowda, the Police Sub-Inspector,
the Trial Court convicted the accused, which is gross error
in law. It is contended that the respondent police have
not complied with the mandatory provisions of sections 42,
50, 52 and 54 of NDPS act. The articles seized i.e.,
cannabis plants were sent to FSL after 17 days, infact, the
seized cannabis had lost his original character at the time
of sending the same to FSL. Further, the Investigating
Officer failed to categorise the seized articles, such as,
seeds, stems, leaves, fruiting tops, flowering tops and
branches. There is discrepancy in the weight of the seized
ganja.
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9. It is further contended that mere presence of
accused Nos.1 and 2 at the scene of offence i.e., in front
of house of PW-5, does not led to guilt against the
accused. Infact, accused Nos.1 and 2 and their father
PW-5 Kumaraswamy are not owners of the land shown in
Ex-P5 RTC extract. One Channabasaiah, S/o. Gurubasaiah
is the owner of the said land. The Investigating Officer
failed to make Sri. Channabasaiah as one of the witness in
the charge sheet. Further, none of the villagers or
neighbouring land owners were made as witnesses in the
charge sheet. Thus, he prayed to allow the appeal.
10. Per-contra, learned High Court Government
Pleader appearing for respondent-State vehemently
contended that the complainant, sub-staff, Gazetted
Officer and Investigating Officer have categorically stated
against the accused and hence the Trial Court has rightly
convicted the accused. Further, the Investigating Officer
has complied with the mandatory requirements under
sections 42, 50, 52 and 54 of NDPS Act. Therefore, there
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is no fault in that regard and on the basis of the material
available on record, the Trial Court has rightly drawn the
presumption under section 54 of NDPS Act in favour of the
prosecution and accordingly, convicted the accused.
Hence, prayed to dismiss the appeal.
11. Based on the above submissions, the following
point that arises for consideration of this Court:-
1. Whether the judgment of conviction and
order on sentence dated 10.12.2013 passed
by Prl. Sessions Judge(Special Judge),
Tumkur, calls for interference by this Court?
12. As per the case of the prosecution, on
08.08.2011, PW-7, his sub staff, panchas, videographer
and concerned Tahsildhar conducted a raid on the land of
accused Nos.1 and 2 and seized in all 85 cannabis plants,
which were illegally grown in the land of accused Nos.1
and 2. Therefore, the complainant seized said cannabis
plants and conducted seizure panchanama as per Ex-P1.
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13. In order to establish the above aspect, the
prosecution examined PW-1 Nagesh and PW-2
Narasimhamurthy, who were seizure mahazar
witnesses(Ex-P1), but, they turned hostile to the case of
the prosecution. The prosecution treated them as hostile
witnesses and permitted to cross examine. However,
nothing worthwhile is elicited from their mouth.
13a. PW-3 Rudresh, who was the photographer, he
too turned hostile to the case of the prosecution and he
has not supported the case of the prosecution.
13b. PW.4 H.S. Shivashankaraiah, PW.6
A.B. Vijaykumar-Tahsildhar, Tiptur Taluk and PW-7 Dr.
M.B. Boralingaiah, Asst. Sub Inspector of Police, Tiptur are
the members of the raiding party. They have categorically
stated that on credible information, they conducted raid
and apprehended accused Nos.1 and 2, drew Ex-P1
seizure mahazar and seized in all 85 ganja plants and it
weighed 50 kg. Hence, PW-1 separated said ganja plants,
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500 gms sample and remaining ganja plants weighing
49.50 kg were separately packed. In the cross-
examination, PW-1 admitted that soon after receipt of
credible information, he did not produce in writing or
inform to his higher authority. He has not produced any
document to substantiate that said information was sent
to his higher authority. He admits that the seized ganja
plants were sent to Forensic Science Laboratory for
chemical analysis after expiry of 17 days. PW-4 further
admits that PW-7 did not obtain any search warrant to
search the land or the house of the accused. PW-7 in his
cross examination admits that he did not obtain any
search warrant from the Court or his higher authority. He
further admits that in order to lodge the complaint, he did
not visit the police station and during his investigation, he
did not call any local panchas to stand as panchas to the
seizure panchanama. He did not conduct investigation as
to the other inmates of the house in question.
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14. In this case, it is admitted fact that Assistant
Superintendent of Police-PW.7, who conducted raid on
accused Nos.1 and 2 has not made any record of any
ground on the basis of which, he had reasonable plea that
the offence under section 54 of the NDPS Act is being
committed before proceeding to conduct raid on the
accused without obtaining search warrant and therefore
the provision of section 54 of NDPS Act has not been
complied with. Therefore, this renders the entire raid
without jurisdiction and as a logical criteria, it vitiates the
proceedings under sections 53 and 54 of NDPS Act which
contains valuable safeguards for the liberty of the citizen
in order to protect them from ill-founded or frivolous
prosecution or harassment. Therefore, there has been
direct non-compliance of section 54 of the NDPS Act,
which renders the search completely without jurisdiction.
15. Further, as per section 42(2) of NDPS Act, where
an officer takes down any information in writing under
sub-section (1) or records grounds for his belief under the
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proviso thereto, he shall within seventy-two hours send a
copy thereof to his immediate official superior. The
compliance of section 42(2) of NDPS Act is mandatory and
failure by Addl. Superintendent of Police to take down the
information received by him in writing and his failure to
forthwith send a report to the immediate officer would
cause prejudice to accused Nos.1 and 2.
16. Under this section, if there is total non-
compliance of the said provision, the same would
adversely affect the prosecution and to that extent, it is
mandatory.
17. Whereas in this case, no information was taken
down in writing by PW-7 Dr. M.B. Borlingaiah-Asst. Sub-
Inspector of Police, Tiptur Sub-Division nor conveyed said
information to his immediate superiors. As per the
evidence of PW.7, he orally informed to his higher officials.
The oral evidence of PW-7 would not be in compliance with
the provision of section 42(2) of NDPS Act.
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18. On perusal of the oral and documentary evidence
on record, it appears that the requirement of section 50 of
NDPS Act has not been complied with. Infact, accused
Nos.1 and 2 have informed that they were not searched in
the presence of Gazette Officer or the Judicial Magistrate
First Class. In the instant case, as per the oral evidence of
PW-7 Assistant Superintendent of Police and PW-6
Tahsildhar, Tiptur, the Investigating Officer PW-7 failed to
give his opinion of accused being searched in the presence
of the Gazette Officer or Judicial Magistrate of First Class.
Infact, PW-7 ought to have complied with the requirement
of section 50 of the NDPS Act, but, he has failed to comply
with the same.
19. On perusal of the oral testimony of PW-7-
Dr. M.B. Boralingaiah, it clearly establishes that he is the
higher authority to PWs-4 and 8. The obligation of raiding
party under section 50 of NDPS Act stands settled in the
case of Vijaysinh Chandubha Jadeja -vs- State of
Gujrat reported in AIR 2011 SC 77. From the perusal of
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the ratio laid down in the decision cited supra, requirement
of section 50 of NDPS Act was not complied with, by
informing the accused of their option to search either in
the presence of Gazette Officer or the Magistrate. This
mandatory requirement even continues and it was
required that the accused actually were produced before
the Gazette Officer or the Magistrate in order to search
and in the process, PWs-7, 4 and 8 failed to comply this
mandatory provision.
20. From the perusal of the evidence of PW-7, it
appears that on 08.08.2011, at 9.00 p.m., he received
credible information about illegally grown cannabis plants
in the land of PW-5. Admittedly, PW-7 failed to record
information received in his diary nor it was communicated
to his higher authority in writing within a period of 72
hours, even after raid was conducted.
21. In the instant case, according to the prosecution
case, accused Nos.1 and 2 had grown ganja plants
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weighing about 50 kg, which was kept in a bag. In
support of case of the prosecution, it has produced and
marked Ex-P9- FSL report of chemical analysis. The
Scientific Officer opined that there is presence of
ganja(cannabis) in the bags sent for examination. It
appears that the report of the chemical analysis is not
belieavable as the Chief Chemist has not categorized ganja
as to whether it includes leaves, fruits, flowering tops etc.,
Ganja is defined under Section 2(iii) (b) of NDPS Act. As
per section 2(iii) (b), Ganja, that is flowering or the
fruiting tops of the cannabis plant excluding the seeds and
leaves when not accompanied by the tops, by whatever
name they may be known or designated. Whereas in the
instant case, the Chief chemist has not described the
'ganja' as defined under section 2(iii) (b) of NDPS Act.
Therefore, the FSL report is inconclusive. Moreover, the
Scientific Officer is not at all examined in this case.
22. On perusal of the evidence of PWs-4, 6 to 8, it
appears that there is contrary evidence as to the seizure
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of ganja, its measurement, weight, manner of seizure
conducted by them. Admittedly, the Investigating Officer
has not examined any independent witnesses, local
witnesses, neighbouring land owners, though they were
available in the locality. Further, PWs-1 to 3 being
independent seizure mahazar witnesses have not
supported the prosecution case. The owner of the land has
not been examined. Except the official witnesses, the
other locality witnesses or independent witnesses have not
been made as witnesses to the case on hand. In the
instant case, PWs.4, 6 to 8 are officials of police
department. The entire raid has been conducted by them
in the absence of any independent witnesses and the
manner of conduct of raid on accused Nos.1 and 2 is also
contrary to the provisions of NDPS Act. The mandatory
provisions of NDPS act have not been complied with and
the raiding party have not given opportunity or given an
option to conduct raid in the presence of Magistrate or
independent Gazetted Officer. Under such circumstances,
the evidence of the police officer requires corroboration
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and based on oral testimonies of PWs-4 and 6 to 8, the
conviction cannot be imposed. Hence, looking into any
angle, the prosecution has failed to prove its case beyond
reasonable doubt, but, the Trial Court based on the
uncorroborated testimony has wrongly convicted the
accused. Hence, the appeal filed by the appellants
deserves to the allowed. Accordingly, I answer the above
point in the affirmative.
Accordingly, I pass the following:-
ORDER
i. Criminal appeal is allowed;
ii. The judgment of conviction and order on sentence
dated 10.12.2013 passed by learned Principal
Sessions Judge (Special Judge), Tumkur in
Spl.C.No.307/11 is set-aside.
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iii. The appellants/accused Nos.1 and 2 are set at
liberty and their bail bonds, if any, shall stand
cancelled, and
iv. The fine amount, if any, deposited, shall be returned
to the appellants/accused forthwith.
v. The order of the Trial Court with regard to material
objects is maintained.
vi. Registry is directed to send a copy of the judgment
along with trial court records to the trial court.
Sd/-
JUDGE
MN
